The arrest of the Boston Marathon suspect has made “Miranda Rights” a trending topic on Twitter, as the authorities have apparently decided not to Mirandize him. This has in turn put renewed attention on this old story about the FBI’s aggressive interpretation of the public-safety exception to Miranda, instructing agents to avoid Mirandizing terror suspects for as long as possible.
This prompts the question: why do law enforcement officers have any objection to Mirandizing terror suspects? I can think of four possibilities.
1: Miranda really works. That is, there are suspects who would be prepared to give the police information, but after being told that they don’t have to, would decide to keep quiet. While this view appears to be the premise of Miranda itself, most people I know who are familiar with the criminal justice system don’t find it likely. It would be highly surprising if this were true.
2: It’s not the Miranda warnings, it’s the Miranda rights. I haven’t done enough research to know whether this holds water, but I wonder if the decision to delay Mirandizing also delays the various other rules that go along with Miranda. Can a suspect who is in custody but not Mirandized still invoke his Miranda rights, along with the prophylactic rules that go with them? Can that suspect’s refusal to answer questions be used against him at trial (pending Salinas)? In other words, it might be that in addition to providing information, Mirandizing a suspect actually changes his legal status in an important way. I don’t know if this is actually true and nobody has provided this as an explanation, but I have been wondering about it.
3: It’s politics. The administration is anti-Miranda because Lindsey Graham wants them to be, and the administration wants to find low-cost ways to make Lindsey Graham think they’re tough on terrorism. I wouldn’t rule this out, but it doesn’t answer the question of why Lindsey Graham cares.
4: Synechdoche. Nobody cares about the Miranda rights themselves. But Miranda is the iconic beginning of the criminal process, so Mirandizing somebody is a symbol that we might give them criminal due process rights, rather than military detention. For those who think that military detention is tougher than criminal justice (and it’s not clear that’s correct, but lots of folks do seem to think it), fighting Miranda is rally just a publicly-digestible way to insist that the war on terror is a war, not a law enforcement operation.